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HomeMy WebLinkAboutDraft Minutes - 07/17/2008Planning Commission Minutes 07/17/2008 CITY OF NEWPORT BEACH Planning Commission Minutes DRAFT July 17, 2008 Regular Meeting - 6:30 p.m. Page 1 of 9 file:/ /Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07172008.htm 07/31/2008 INDEX ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge and Hillgren — Commissioners Hillgren and Toerge were excused, all thers were present. STAFF PRESENT: David Lepo, Planning Director aron Harp, Assistant City Attorney David Keely, Senior Civil Engineer Patrick Alford, Planning Manager Rosalinh Ung, Associate Planner Russell Bunim, Assistant Planner Janet Brown, Associate Planner Ian Burns, Esquire of Harper & Burns LLP, Special Counsel to the Planning Commission June Ailin, Esquire of Aleshire & Wynder, LLP, Special Prosecutor for the ity of Newport Beach finger Varin, Planning Commission Secretary and Administrative Assistant ELECTION OF OFFICERS: ELECTION OF OFFICERS The following slate of names was presented for consideration. Scott Peotter, Chairman Bradley Hillgren, Vice Chairman Barry Eaton, Secretary Motion was made by Commissioner McDaniel and seconded by Commissioner Unsworth to close the nominations. Ayes: Eaton, Unsworth, Hawkins, Peotter and McDaniel Abstain: None Absent: Toerge and Hillgren Motion was made by Commissioner McDaniel to approve the slate o Approved officers. Ayes: Eaton, Unsworth, Hawkins, Peotter and McDaniel Abstain: None Absent: Toerge and Hillgren PUBLIC COMMENTS: PUBLIC COMMENTS Chairman Peotter presented a plaque to the out -going chairman on behal of the Commission and staff noting the valuable insight and dedication demonstrated by Commissioner Hawkins during his tenure. file:/ /Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07172008.htm 07/31/2008 Planning Commission Minutes 07/17/2008 Page 2 of 9 Commissioner Hawkins thanked the Commission and staff for their recognition. POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on July 11, 2008. HEARING ITEMS OBJECT: MINUTES of the regular meeting of June 5, 2007. ITEM NO. 1 Motion was made by Commissioner Hawkins and seconded by Approved Commissioner McDaniel to approve the minutes as amended. Ayes: Eaton, Hawkins, Peotter and McDaniel Abstain: Unsworth Absent: Toerge and Hill ren OBJECT: MINUTES of the regular meeting of June 19, 2007. ITEM NO. 2 Motion was made by Commissioner Hawkins and seconded by Approved Commissioner McDaniel to approve the minutes as written. Ayes: Eaton, Hawkins, Peotter and McDaniel Abstain: Unsworth Absent: Toerge and Hillgren SUBJECT: Fury Rok & Rol Sushi Lounge (PA2005 -087) ITEM NO.3 4221 Dolphin Striker Way PA2005-087 Update on the revocation of Use Permit No. 3162 and Use Permit No. Removed from 005 -018. calendar Ms. Ung noted that a settlement agreement had been made between the City and the property owner and operator. A new list of conditions oll approval has been made to allow a modified restaurant with live entertainment and dancing as ancillary uses. Ian Burns, Special City counsel, at Commission inquiry, noted he does not have standing to have opposition to the resolution as he was no involved with the settlement. Motion was made by Commissioner Hawkins and seconded by Commissioner McDaniel to remove this item from calendar. Ayes: Eaton, Hawkins, Peotter and McDaniel, Abstain: Unsworth Absent: Toer a and Hill ren OBJECT: Sejour (PA2002 -167) ITEM NO.4 3400 Via Lido PA2002 -167 file: //Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07l72008.htm 07131/2008 Planning Commission Minutes 07/17/2008 of use permits for an off -site alcoholic beverage outlet on -site alcohol consumption, food service and Harp, Assistant City Attorney, recused himself from this item. portion of minutes has been provided by Precise Reporting is attached. on was made by Commissioner Hawkins and seconded b missioner McDaniel to adopt resolution amending Use Permit 2001 and rescinding Use Permit 2002 -034 on property located at 3400 Vi with the incorporation of additional findings (Sejour Findings of Face ared by special counsel. Burns added to Conditions 2 and 13 of Findings of Fact by stating lease was for a bar use. Ung added another condition regarding the approval expiration timing exercised. Eaton, Cole, Hawkins, McDaniel, Toerge and Hillgren None ECT: Powers Residence (PA2007 -176) 2223 Pacific Drive ification Permit to exceed the three -foot height limitation in the f setback to allow for a vehicular- bridge driveway, for guard -raili iciated with the vehicular- bridge driveway, and for walls located at property lines. r. Harp returned to the proceedings. r. Russell Bunim, Assistant Planner, gave an overview of the staff report. on Jeannette, architect for the project, referring to a PowerF mentation, noted the topography, grade, front yard setbacks, pa' ueways and encroachments in the neighborhood. He noted he can t a minimum of 50 percent landscaping in front yard setback due to lot and driveway; turf block can be added at the street level for ad dscape and presented a modified plan. Commission inquiry: • He noted the turf block addition would be in the city's right -of -way ar that he would apply for the appropriate permits if this was approved; • The elevator shaft height is below the allowed height limits in tt neighborhood; • The neighbors had been made aware of the proposed project; ITEM NO. 5 PA2007 -176 Approved Page 3 of 9 file: //Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07172008.htm 07/31/2008 Planning Commission Minutes 07/17/2008 comment was opened. Kendziorski, neighbor, noted his opposition to this project: It is a loss of his property rights (harbor view) and would set precedent; . Steep hill with this size house is a safety issue; . This project is too big for this size lot. imissioner McDaniel asked about the size of new homes being built area and individual view rights. Lepo answered there are very large homes that have been built u older regulations; however, they would not be allowed to be built ti to the policies that have been adopted in the new General Plan al Coastal Land Use Plan. He added that there is no sta nance, policy or otherwise that protect private views from pri nmissioner Unsworth noted the driveway is to follow closely ography of the lot, which would have the guardrail exceeding ximum height. What staff is recommending and the proponent is a: seems to be of little difference. Mellon, property manager and ty, asked about the top of ridge ling further as that is problematic. comment closed. Commission inquiry, Mr. Lepo noted: employee of the owners of line with the elevator shaft . Decisions rendered are on a case by case basis. Staff is interei in direction from the Commission on the application of some of new design standards. It would not bind you any way in determii other cases; . Distributed a resolution of approval for the Planning Commission use; . This is a unique project due to the size of the lot. Staff and applicant have not agreed on the application of the new de standards and therefore, it is to you for a determination; . Discussed the differences presented in the staff report and presentation by the architect noting the main issue is the excav; of eleven feet to the front property line is not consistent with Cri No. 7. Page 4 of 9 file: //Y: \Users \PLN\Shared \Planning Commission\PC Minutes \mnd07l72008.httn 07/31/2008 Planning Commission Minutes 07/17/2008 Commission inquiry, David Keely noted that turf block would eptable. The City world require an encroachment agreement for i idard improvements in the public right -of -way. was made by Commissioner McDaniel and seconded ioner Hawkins to approve Modification Permit No. 2008 -020 located at 2223 Pacific Drive (PA2007 -176) with modification ng exhibit 24.1 presented this evening by the applicant. comment was re- opened. Commission inquiry, Mr. Jeannette noted the planter on this exhibit we iwn at 5 feet on both sides from the property line to the face of the wa ing. He noted he would look at the height of the elevator shaft to see if Ad be lowered. on Peotter suggested taking a 5- minute break in order to for the Commission to adopt rather than continuing this item. Commission took a five minute break. Hawkins suggested the following changes to the findings: . Fifth Whereas clause: "Whereas, cutting into a bluff as proposed by the project is consist with Criterion No. 7 of the Residential Design Criteria, wh requires ... add at the end ..... in that: the project grading is stepped e approximates the bluff contour, this lot is small and steep requir the proposed grading. The site has few or no natural features biological resources." . Sixth Whereas clause: "Whereas, providing landscaping in the manner proposed consistent with the intent of Criteria No. 6 of the Residential Dec Criteria, ...add at the end ..... in that the site is narrow and ste< sloped, the neighborhood has hardscape outdoor living areas sc below the street grade. " . Seventh Whereas clause: 'Whereas, locating an entry door and other streetside features in t manner proposed is consistent with Criteria No. 4 of the Resident Design Criteria, which requires, add at the end of the last sentence the criteria, ...in that the project site is steeply slopped and nam and access is provided via a stairwell. Primary entrance is provid with a clear and connecting path to a public street or sidewalk. Lepo asked about the "stepped" reference. Page 5 of 9 file : //Y: \Users\PLN\Shared\Planning Commission\PC Minutes\mnd07l72008.httn 07/31/2008 Planning Commission Minutes 07/17/2008 Page 6 of 9 Commissioner Hawkins stated the grading is not an excavation but rather it is a two- stepped grading, which approximates the slope and works down in a stepped fashion. Mr. Jeannette noted that the height of the shaft can be lowered by riches. Chairman Peotter noted: • Condition No. 1 shall reference Sheet 24.1 that delineates the extra landscape plan. • Condition No. 17, the elevator shaft shall not exceed 3 feet above the ridgeline. • The action is to "approve" and the date to be changed to July 17th. Public comment was closed. Mr. Jeannette noted that on behalf of the applicant, he accepts all the changes to the findings and conditions of the resolution. Ayes: Eaton, Unsworth, Hawkins, Peotter and McDaniel Abstain: None Absent: Toerge and Hillgren SUBJECT: Santa Barbara Condominiums (PA2004 -169) ITEM NO.6 900 Newport Center Drive PA2004 -169 Gala Real Estate Partners, the new owner of the Santa Barbara ondominiums project, is requesting additional time to review and accept Removed from he proposed development agreement. This item will be removed from the calendar Planning Commission calendar and re- advertised once it is ready. Planning Director Lepo noted this item is to be removed from calendar. Motion was made by Commissioner Hawkins and seconded by Commissioner McDaniel to remove this item from calendar. Ayes: Eaton, Unsworth, Hawkins, Peotter and McDaniel, Abstain: None Absent: Toer a and Hill ren OBJECT: 930 Sushi (PA2007 -211) ITEM NO. 7 PA2007 -211 930 West Coast Highway Request to amend Use Permit No. 3649 to allow a change in operational Approved file: //Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07172008.htm 07/31/2008 Planning Commission Minutes 07/17/2008 Page 7 of 9 aracteristics from a full - service, small -scale to full - service, low tumo) :ing and drinking establishment. A 548 - gross- square -foot expansion iposed (including 390 square feet of net public area) for the purpose rviding an additional dining area and a bar. Also requested is a chan the alcoholic beverage license from a Type 41 to a Type 47, and iver of 13 off - street parking spaces that would be required for 1 )ansion of the restaurant. An amendment to Accessory Outdoor Dini rmit No. 54 is requested to allow an 18.5 - square -foot increase to 1 sting 138.5- square -foot outdoor dining area. ciate Planner, Janet Brown, gave an overview of the staff report. provided additional information: A widening of Coast Highway to six lanes in this area is a ft potential proposal and is included in the Master Plan of Streets Highways in the General Plan. A total of 20 parking spaces w be lost if this were to occur. The parking lot is divided into zones and according to the survey Zone 10 is never utilized with the exception of 1 car di weekday. Zone 10 is located across Coast Highway and is "no parking at any time." Restriction of the amount of square footage used during lunch tim hours, when other uses are most busy, has not been discussed wit the applicant because observation indicates the restaurant is not fu at this time. If Coast Highway were to be widened, there is condition of approval included that references changes to on -sit parking, etc. shall be subject to review by Traffic Engineer and ma require an amendment to this Use Permit. Olfati, architect for the proposed project, noted they have read eat the conditions. City Attorney Harp noted a reference to the widening of should be included in Condition 11. Commission inquiry, Mr. Olfati stated they would reluctantly agree tricting the floor area availability during the lunch hour if the widening ast Hiahwav would occur. Hawkins noted his concern of the Type 47 liquor uest. ;i Leontieff, co -owner of the restaurant, stated he wants to change 47 for monetary reasons as his rent has increased and he wants all of his employees. Gordana Samardzic, co -owner of the restaurant, noted that parking by employees of other establishments happens during the day but after 5 or 6 p.m. the parking lot is available for their customers. When the highway is widened, there still should be no problem as the other tenants are closed file:HY: \Users \PLN\Shared\Planning Commission\PC Minutes\mnd07l72008.htrn 07/31/2008 Planning Commission Minutes 07/17/2008 night. y Sokolich, local resident, noted parking issues, alcohol bey vice, the hours of operation, change of characteristic and evening speakers as his concerns. im Jordan, local resident, noted his support of this application and iat businesses such as this one be encouraged along this area. Leontieff clarified there is no outdoor sounds. Samardzic noted that with the closure at 11 p.m. there is for a nightclub atmosphere. Ir. Olfati, at Commission inquiry, stated that the length of the counter ie bar is nineteen feet and that seven stools can fit at that counter, 1 ?st of the area is dining room. The purpose of the bar is to serve 1 iners and anyone sitting at the bar would be waiting for available dini Brown noted that the Police Department is aware and agrees with the noted in Condition 7. >tion was made by Commissioner Hawkins and seconded bl immissioner Unsworth to approve an amendment to Use Permit No 48 and Accessory Outdoor Dining Permit No. 54 for an eating anc nking establishment located at 930 West Coast Highway (PA2007 -211 :h the findings and conditions as set forth as Exhibit A. proposed alternate motion was made by Commissioner Eaton as star th an additional condition that if the widening of Coast Highway complished, that the CUP will be brought back for consideration citation on square footage devoted to lunchtime hours. motion died for lack of a second. nissioner Unsworth made a substitute motion that was seconded nissioner McDaniel to amend Condition 11 to include widening after vehicular circulation. nissioner McDaniel noted his concern of an approval for a Type ;e that runs with the land. We have seen so many problems and not see that this project needs this license. imissioner Hawkins noted he shares the concerns and with respect alcohol use, the Police Department has no concern with the limit --- -.., -•• - "- McDaniel Toeroe and Hi BUSINESS: ADDITIONAL Page 8 of 9 file: //Y: \Users \PLN\Shared \Planning Commission \PC Minutes \mnd07l72008.htm 07/31/2008 Planning Commission Minutes 07/17/2008 a. City Council Follow -up - Mr. Lepo noted the City Council receivec BUSINESS and adopted a progress report on the General Plan; and, the received a status report on terms of a settlement agreement wit Sober Living by the Sea Residential Care facility; b. Planning Commission reports - Commissioner Hawkins reported E met and received a report on traffic synchronization of Area 1 Corona del Mar up through MacArthur Blvd, which should completed by the end of the year or early next year; there will be appointment to fill the vacancy created by the resignation Commissioner Unsworth. c. Matters which a Planning Commissioner would like Staff to report c at a subsequent meeting - none. d. Project status - Commissioner Hawkins asked about the Pani project. Mr. Lepo stated that an appeal by a Councilmember did n get to the City Clerk's office within the 14 day appeal period and was opined by the City Attorney that therefore there could be i appealhearing. e. Requests for excused absences - none. p.m. CITY OF NEWPORT BEACH PLANNING COMMISSION Page 9 of 9 file: //Y: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd07l72008.htm 07/31/2008 C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 71708sejour.TXT BEFORE THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH IN RE: REVOCATION OF USE PERMIT NOS. 2001 -005 & UP2002 -034 PA2002 -167 SEJOUR EUROPEAN BISTRO & LOUNGE, 3400 VIA LIDO NEWPORT BEACH, CALIFORNIA THURSDAY, JULY 17, 2008 NEWPORT BEACH, CALIFORNIA; JULY 17, 2008 APPEARANCES: CHAIRMAN SCOTT PEOTTER, COMMISSIONER ROBERT HAWKINS, COMMISSIONER CHARLES Page 1 U 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 71708sejour.TXT UNSWORTH, COMMISSIONER BARRY EATON, COMMISSIONER EARL MC DANIEL. CHAIRMAN PEOTTER: Item number 4 is Sejour. This is a revocation hearing. And this is a public hearing on the public -- well, it's a public revocation hearing to adopt the resolution modifying the subject of findings and conditions, and we have a staff report. MR. LEPO: Mr. Chairman, this, again, is a continuation of this item. If you recall the hearing, the testimony's already been received on the grounds, basis for revoking the permit, and rebuttal. And that testimony was provided by the defendant's attorney in this case. So tonight, there's no need to open the public hearing on the revocation testimony for purposes of taking more testimony on the revocation, if that's what the -- if revocation is what planning commission decides to pursue. A couple of options here. I believe you all received an additional set of findings from Mr. Burns, 2 who is serving as Counsel to the Planning Commission on this case. Those findings were made on the assumption that the Commission might want the option of approving revised conditions to the use permit consistent with your direction the last time we discussed this matter. Page 2 J 71708sejour.TXT 6 The findings were made in more detail than what 7 had originally been proposed, because it's our 8 understanding that the overstreets, the applicants, or 9 permit holders, are not willing or not interested in 10 changing the conditions. so you, essentially, have the 11 option of changing them unilaterally. That's why we have 12 more detailed findings. 13 The other option is to just go ahead. And we 14 would suggest if you want to go with a revocation, you've 15 taken the testimony, you can just discuss them amongst 16 yourselves, and take that action to revoke. 17 As a courtesy, anybody who wants to speak, we 18 suggest a public hearing and let them speak, but not for 19 the purposes of providing testimony, in case the attorney 20 or the applicants have any comments about any of the 21 findings for the revocation hearing. But no new 22 testimony needs to be taken. i do understand that the 23 applicants are going to be requesting a continuance to 24 the August 7th meeting. 25 so if you're interested, you have those three 1 different options. Again, adopting the resolution to 2 make these findings consistent with Mr. Burns' submittal 3 to you this afternoon, go ahead and deliberate, and make 4 findings to revoke or not to revoke the use permit. 5 But in any event, we do understand the 6 applicants are asking for a continuance, so you might Page 3 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 71708sejour.TXT want to open it to public hearing and ask them to come Up. And I think Mr. Burns also has some comments to make. CHAIRMAN PEOTTER: Mr. Burns. MR. BURNS: Mr. Chairman, thank you. I think Mr. Lepo did cover it pretty well. You did close the hearing last time, so the hearing should not be reopened. All the evidence is now before you. There has been some additional submittals to you from -- possibly from staff and from the applicant, and those should not be considered in any decision as to whether or not to revoke or modify the permit. You can certainly consider those for other purposes, but not for the main matter that is before you tonight. only those persons who did hear the evidence should be voting on this. And I guess we have a new commissioner, so he should probably abstain from that, unless he read all the evidence. And you certainly have a resolution before you tonight, and you'd have to count 4 the votes and see if there's enough to pass that resolution to move it on. CHAIRMAN PEOTTER: The entire evidence that you're talking about for commissioner Unsworth -- MR. BURNS: Yes. CHAIRMAN PEOTTER: -- was the staff report, and it was in his notebook. So if he read that entire Page 4 0 71708sejour.TXT 8 packet -- 9 MR. BURNS: It would require the transcript and 10 all of the exhibits that were in the charging documents 11 back in March. That's really the body of the evidence. 12 It's really quite -- I have basically two volumes of 13 evidence that should be read. 14 CHAIRMAN PEOTTER: So, Mr. Unsworth, I presume 15 you will abstain from that? 16 COMMISSIONER UNSWORTH: Yes. 17 CHAIRMAN PEOTTER: Go ahead, Mr. Burns. 18 MR. BURNS: I was just going to also add that 19 is would be appropriate to allow persons to speak on this 20 matter but not to present evidence in the issue about 21 whether or not to modify or revoke the permit but for 22 purposes of asking for the continuance or challenging, 23 possibly, the findings, or the way that the decision is 24 worded, or something like that, but not to put additional 25 evidence in before the evidence before you. 1 CHAIRMAN PEOTTER: Thank you very much. 2 so, then to summarize staff, basically we have 3 the option to revoke the cup tonight, we can 4 take -- well, we can revoke, we can modify, or we can 5 continue, and the public hearing that we would -- public 6 hearing that anybody might want to help or join us in is 7 not for evidence in deciding whether to revoke or not, 8 but purely input to the Commission as far as whether we Page 5 5 0 71708sejour.TxT 9 want to modify, maybe, some of the conditions or findings 10 that you prepared for that modification, or whether to 11 ask for a continuance and give reasons for their 12 continuance. 13 MR. BURNS: That's correct. And maybe, if I 14 could just add that, at your last -- when you did close 15 the public hearing, you did determine that you were going 16 modify and not revoke, and -- but allow the parties an 17 opportunity to try to work that out. 18 And it's my understanding as of Monday, that 19 that had not occurred, and, therefore, you directed them 20 to come back. You had unilaterally imposed a 21 modification of the Cup. 22 That's the way you were leaning towards in your 23 intended decision back when you made that decision. And 24 it wasn't the decision that night. It was your intended 25 decision. That's the status of the matter. E 1 CHAIRMAN PEOTTER: Let's bring it back to the 2 Commission just to discuss that portion of it before we 3 open it up for public hearing. 4 Commissioner Hawkins? 5 COMMISSIONER HAWKINS: Thank you, Mr. Chairman. 6 I have a question of Mr. Burns. And that 7 question is, there was a tentative direction at the last 8 hearing after we closed the public comment portion. But 9 that was only tentative, and we could move to revoke or Page 6 N 71708sejour.TxT 10 not do anything at all; isn't that right? 11 MR. BURNS: That's correct. It was only your 12 tentative decision. 13 COMMISSIONER HAWKINS: Okay. Okay. So 14 everything's up for grabs possibly? 15 MR. BURNS: Correct. 16 COMMISSIONER HAWKINS: Okay. Thank you. 17 CHAIRMAN PEOTTER: Commission discussion. 18 Mr. Eaton? 19 COMMISSIONER EATON: Mr. Chairman, I had a 20 question for Mr. Burns, too. 21 Mr. Burns, you provided the Commission some 22 findings to go along with the possible modification. one 23 of the conditions in the possible modification was 24 actually the rescission, as I read it, of the entire 25 permit granted in 2002. And I didn't see any of your 7 1 findings that were directed to that possible condition. 2 Should there be findings for that possible 3 condition? 4 MR. BURNS: The way I wrote the findings was to 5 justify a new CUP that was modified and that would 6 supersede the other CUPS. I wasn't sure if that was not 7 the intent, but that's the way read it. 8 COMMISSIONER EATON: So the fact that -- 9 MR. BURNS: One new CUP would replace the two 10 CUPS that were previously in existence. Page 7 71708sejour.TxT 11 COMMISSIONER EATON: Okay. Maybe I need 12 clarification for staff. I thought the proposed 13 resolution was modifying the first CUP and rescinding the 14 second CUP. Am I incorrect on that? 15 CHAIRMAN PEOTTER: I'm sorry, Mr. Chairman. 16 Mr. Eaton, would you repeat that question? 17 COMMISSIONER EATON: My understanding was the 18 proposed resolution would modify the first CUP and 19 rescind the second CUP, as opposed to granting an 20 entirely new CUP which would supplant both of the 21 original Cups. 22 Do I misunderstand that? 23 MR. BURNS: No, that's clearly what the title 24 is, how it's worded in the staff report. 25 MS. UNG: That's correct. 0 1 COMMISSIONER EATON: So we're modifying one 2 CUP, and you've given us findings for most of those 3 modifications, virtually all of them. But the one I'm 4 curious about was the condition that rescinded the other 5 CUP. 6 Do we need findings for that? 7 CHAIRMAN PEOTTER: Mr. Burns? 8 MR. BURNS: No, I don't think so, Mr. chairman. 9 Because you just have to have findings to justify taking 10 away the vested right the person had. And the proposed 11 findings would give you the evidence that you need to Page 8 0 71708sejour.TxT 12 modify. 13 I'm not sure there's a technicality that needs 14 to be corrected, but I think the evidence supports the 15 decision here you're about to make. And it should be 16 fine, unless there's some technicality in the way that 17 resolution lines up or something like that. 18 COMMISSIONER EATON: Okay. As long as you say 19 we're covered, that's all I wanted to know. Thank you. 20 CHAIRMAN PEOTTER: Other Commission discussion 21 before we open the public hearing? 22 (No audible response.) 23 CHAIRMAN PEOTTER: Okay. we'll open the public 24 hearing. we do have a time limit, and we are interested 25 in hearing not new evidence but your comments regarding E 1 either of the optional decisions we have before us. 2 MR. THOMAS: Yes. Good evening. My name is 3 Chris Thomas, and I'm the attorney for the overstreets. 4 CHAIRMAN PEOTTER: I'm sorry. You said 5 Chris -- 6 MR. THOMAS: Chris Thomas, I'm sorry. And this 7 is Mrs. Overstreet. 8 CHAIRMAN PEOTTER: If you both wouldn't mind 9 signing in, that would be great. 10 MR. THOMAS: Thank you for giving us the 11 opportunity to address you briefly on this matter. I 12 just want to say -- and I think all the Counsel or Page 9 7 71708sejour.TxT 13 Mr. Lepo would agree with us -- that we've been working 14 very hard this week to try to resolve things short of a 15 hearing. 16 And to that end, I told Mr. Lepo when 2 came in 17 tonight that we have a signed lease for 3400 via Lido 18 from HOM Realty, and it's a five -year lease with options. 19 so the point is -- and 2 think one of the Commissioners 20 said this, and 2 believe it was 21 Mr. Hawkins -- technically, at this point, you don't have 22 to do anything at all. 23 we're agreeable to simply have this use permit 24 lapse, because the Overstreets -- everybody knows -- and 25 I know the evidence is in, but everybody knows, and even 10 1 Mr. Stockton has testified that the Overstreets have no 2 responsibility for the violations of this use permit. 3 They are owners of the property, and they have 4 a vested right that, by revocation, would be taken away 5 from them. And that's just simply not appropriate, 6 unfair, and it's a violation of their due process when 7 they didn't do this. And Mr. Stockton put that in the 8 record. 9 So at this point, they've got a lease. 10 There's -- this lease is for a realty company called 11 realty. It's not going to be an alcohol bar, or anything 12 like that. So why are we having this hearing? why don't 13 you just let the lease or let the permit lapse? That's Page 10 J 71708sejour.TxT 14 what we propose, absolutely. 15 So if we -- but if we can't do that, all right, 16 then, for the record, we object to these findings, 17 because we think these findings that are being proposed 18 here are defective. And from a legal standpoint, they 19 are particularly defective. 20 At the end, i think the finding is, and the 21 commission is asked to make a finding, that the 22 Overstreets are responsible for the conduct of their 23 tenant. And i realize that it's not a court of law, but 24 1 submit to you that that's completely contrary to the 25 law. 11 1 5o if this happens here, they get their vested 2 rights taken after investing literally hundreds of 3 thousands of dollars into this location. we all know 4 what the next step's going to be, so why go there when we 5 can just let this lapse? They do not want the stigma. 6 They have been in the restaurant business, the bar 7 business, for years with an excellent reputation in Los 8 Angeles and in Orange County. 9 Everybody knows that they operate La cay 10 (phonetic). Everybody knows that they did the wine 11 Merchant. And at no time when Mr. and Mrs. Overstreet 12 operated either one of these was there a citation. Ever. 13 The only citation was to their tenant, which they were 14 never given notice of to go to try to correct. So let's Page 11 0 71708sejour.TXT 15 just let it lapse. 16 CHAIRMAN PEOTfER: Thank you, Mr. Thomas. 17 MR. THOMAS: Mrs. Overstreet would like to have 18 a few minutes to address you. 19 CHAIRMAN PEOTTER: That would be great. 20 MRS. OVERSTREET: Thank you, Commissioners. 21 I promise I'll make it extremely brief. I just 22 wanted to say, honestly, that Dennis and I have worked 23 incredibly diligently the last six weeks to negotiate 24 this lease, because we really felt it was in the best 25 interests of not only what the Planning Commission wanted 12 1 but what was in the best interests for the community. 2 Because there's so much -- concern about 3 various activities going on in Newport Beach. And even 4 though, again, I really didn't feel we were responsible 5 for what our previous tenants did, I understand there's 6 concerns about whoever's in a property like that, that 7 there's concerns. But I really would be grateful if you 8 would look into that. 9 we spoke with Mr. repo and Mr. Alford on 10 Tuesday of this week, and we were hoping to have this it signed lease yesterday, but attorneys like to dot every 12 "I" and cross every "T." And they did, and we do have an 13 executed lease here. This is the original in my hand. 14 I know I'm not allowed to submit evidence, 1S so -- but it is here. And I just would like to say that Page 12 0 71708sejour.TxT 16 if we can just lapse this use permit -- it should lapse 17 in 180 days, because that's what the code says, I 18 believe. Mr. repo and Mr. Alford are more familiar with 19 the exact wording -- I'd be grateful. 20 Thank you very much. the applicant, 21 CHAIRMAN PEOTTER: Thank you, 22 Mrs. Overstreet. lease? 23 Mr. Hawkins, Mr. Robert C? 24 COMMISSIONER HAWKINS: Thank you, Bruce. 25 Mr. Burns, I have a question for you in terms 1 of the -- receiving evidence. Certainly we can -- 2 THE COURT: It's a quick interrupt. Do you 3 have any question of the applicant? 4 COMMISSIONER HAWKINS: I d0 have questions of 5 the applicant, and I was leading to that question. 6 Is there a reason why we cannot receive the 7 lease? 8 MR. BURNS: No, you can receive the lease for 9 purposes of considering that she's -- 10 COMMISSIONER HAWKINS: The request -- 11 MR. BURNS: Yes. It doesn't go to the heart. 12 COMMISSIONER HAWKINS: Right. Okay. 13 MR. BURNS: The issue is it's going t0 a 14 request to do something different in terms of your 15 ultimate decision. 16 COMMISSIONER HAWKINS: Okay. Page 13 13 N 71708sejour.TxT 17 Mrs. Overstreet, would you tender the lease, 18 assuming we will return it to you after we make copies? 19 MRS. OVERSTREET: Yes, sir. 20 COMMISSIONER HAWKINS: Okay. Could you hand it 21 to Mr. Lepo? would you confirm that it's fully executed, 22 and we -- all right. 23 My second question is for the permit holder. 24 MRS. OVERSTREET: Yes. 25 COMMISSIONER HAWKINS: Yes, Mrs. Overstreet, or 14 1 your attorney, you are suggesting that we let the permit 2 lapse, because it has not been used? is that the theory? 3 MRS. OVERSTREET: Yes, sir. 4 COMMISSIONER HAWKINS: Okay. 5 MRS. OVERSTREET: It's been vacant for seven 6 months. 7 COMMISSIONER HAWKINS: Yes. Yes, it has. And 8 that goes to my point. Rather than wait 180 days -- 9 because we have always assured you in these proceedings 10 that we would not take any action on the lapse issue 11 because you have not been using it. 12 But if your proposal is to simply let it lapse, 13 you can waive all of those reservations that you've made, 14 and we could today find that it had lapsed, I believe, 15 for the period since the disuse. I think it was like 16 January 1, right, or something like that, when they 17 vacated? Hasn't been used since January 1? So 180 days Page 14 0 71708sejour.TXT 18 has already expired. 19 MR. THOMAS: Could I address that? 20 MR. BURNS: Mr. Chairman -- 21 CHAIRMAN PEOTTER: Yes, please. Hold on a 22 second. 23 Mr. Burns, why don't you go ahead. 24 MR. BURNS: Thank you. 25 if I could add just a little bit on the law of 15 1 lapse CUPS, the law does provide under the Fort Brag case 2 that if a CUP is being terminated for lack of use, there 3 has to be a hearing before that determination is made. 4 If the applicant were to restart a CUP, then it could not 5 have been lapsed, then it triggers the fact that it's 6 live again. 7 CHAIRMAN PEOTTER: Could this hearing then 8 function as that hearing on the lapse? 9 MR. BURNS: No, because they don't have notice 10 to that effect. And they can waive that right, like they 11 can surrender their CUP tonight, or surrender it on a 12 certain date, or something like that, an irrevocable 13 surrender. 14 CHAIRMAN PEOTTER: Do they need to follow it up 15 in writing, or can they surrender it tonight at the 16 hearing? 17 MR. BURNS: well, I think they can put it -- I 18 think you want it both ways, but they can make that offer Page 15 I 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 71708sejour.TXT on the record and then give you something in writing later. But you'd want to have it irrevocable, effective on a date certain. But that may not work with what she's trying to do. she just leased the property. I'm just offering that in case that works any solution. THE COURT: Okay. Mr. Thomas? 16 MR. THOMAS: Yes, sir. Thank you. Here's the situation. They are not going to surrender it, obviously, because they feel they have a vested right. However -- all right. The proposal is that they have got the lease. It was just signed at 6 o'clock tonight. You'll see. That's the date on the lease. so their proposal is to run the 180 days from the date of the decision of the Commission, which is fair. And the only issue here with them is -- and they have to protect themselves in this sense, and I think anybody who's a businessman would as well -- if, for some reason, unlikely reason, HOM Realty decided to blow up this lease within that six -month period, that 180 days period, if they surrendered all their rights under that use permit, then they can't have any opportunity to use that building for what's already -- it's already set up to use. And, I mean, that would take -- that would take -- that would effect them economically in the event Page 16 0 71708sejour.TxT 20 that this happened. And -- 21 CHAIRMAN PEOTTER: Mr. Thomas, one of the 22 requests that this commission made last time was that 23 they resubmit their CUP application to address that 24 issue. whether or not they had another lease going or 25 not, didn't make any difference to us. If they wanted to 17 1 continue in a modified form, they gave them a lot of 2 opportunity. 3 So what you're asking to us do is to wait 180 4 days -- I'm just clarifying this. You're asking us to 5 wait the 180 days, then hold a hearing saying that it's 6 lapsed, the CUP would be suspended or lapsed. 7 MR. THOMAS: No, sir. I made the suggestion to 8 Counsel, Ms. Allen, and I've also spoken to Mr. repo 9 about this just this evening. I said they can draft an 10 agreement that says that they will not require a public 11 hearing. They will not contest in a public hearing. At 12 the end of that 180 days, if they have not exercised or 13 attempted to exercise any rights on that lease, they just 14 won't contest it. 15 So I propose an agreement that Counsel draft 16 and that the Overstreets -- we would work out the 17 language, and they would sign it. So there would no need 18 for a public hearing. They would basically waive their 19 right to that public hearing. 20 CHAIRMAN PEOTTER: Do you have that agreement Page 17 L 71708sejour.TxT 21 tonight? 22 MR. THOMAS: No. I said Counsel, who has been 23 appointed by the city, draft the agreement. we'll work 24 out the language. If the Commission approves this, we'll 25 work out the language for that part of it. But we would 1 agree not to contest a public hearing after the 180 days. 2 CHAIRMAN PEOTTER: Okay. Your position is 3 clear. 4 Any commission comments for Mr. Thomas? 5 Questions? 6 (No audible response.) 7 CHAIRMAN PEOTTER: All right. Thank you both. 8 Is there anybody else in the public that would 9 wish to speak on this issue? 10 (No audible response.) 11 CHAIRMAN PEOTTER: Seeing none, we'll close the 12 public hearing, and bring it back to -- 13 COMMISSIONER HAWKINS: Mr. Chairman, I would 14 like to hear from Ms. Allan. 15 MS. ALLAN: I'm not -- Good evening. Let me 16 introduce myself again. I'm June Allan, appointed 17 counsel for the staff on this matter. 18 I don't know whether I qualify as a member of 19 the public exactly. But the concern that I have about 20 the proposal is where will this be if, for some reason, 21 the realty office that they just entered into a lease Page 18 A 71708sejour.TXT 22 with decides that this location doesn't work for them and 23 they leave in less than six months? 24 Yeah, we're going to have an agreement that 25 says that the CUP lapses in six months, but it leaves 19 1 them with a CUP in place that is problematic. 2 And there's the potential for some other tenant 3 to come in behind the realty company, and then you have 4 somebody in there operating under a CUP that supposedly 5 is going to lapse in a few months. And it's just kind of 6 working toward another situation where you're going to be 7 in this kind of revocation hearing, and you're going to 8 have problems bringing this to a conclusion. 9 CHAIRMAN PEOTTER: So your preference, then, if 10 I can short you out there, is would be to modify it per it the request tonight? 12 MS. ALLAN: At a minimum. 13 CHAIRMAN PEOTTER: And then perhaps let it 14 lapse? 15 MS. ALLAN: At least if it's modified, you 16 should have a more workable CUP than what you have now in 17 the event that the new tenant decides the location 18 doesn't work out and decides to depart. 19 And frankly, if you have a more workable CUP, 20 I'm not sure that having it lapse in six months without a 21 hearing is particularly necessary; although, I haven't 22 discussed that specific option with the staff, but that Page 19 I 71708sejour.Txr 23 may not be necessary if you have a more workable CUP. 24 CHAIRMAN PEOTTER: All right. Thank you. 25 Commissioner Robert C.? 1 COMMISSIONER HAWKINS: Yes. 2 Mr. Chairman, I'll make a motion to move 3 approval of staff's recommendation for resolution of the 4 Planning Commission's permit number -- amending use 5 permit number 2001 -005, and rescinding use permit number 6 2002 -034, Sejour European Bistro & Lounge, on the 7 property located at 3400 via Lido, PA2002 -167, together 8 with the findings that Mr. Burns prepared for our 9 consideration. 10 CHAIRMAN PEOTTER: Thank you. 11 Motion is on the floor. Is there a second? 12 MR. BURNS: Mr. Chairman, I know it's highly 13 unusual for me to speak at this time, but Mr. -- the 14 maker of the motion did actually have a couple of 15 suggestions on the findings that I would want the 16 Commission to consider also. 17 THE COURT: Let's me see if there's a second 18 first, then we'll come back and address it. 19 Is there a second? 20 COMMISSIONER MC DONALD: Mr. Chairman, I 21 second, but I have comments. 22 CHAIRMAN PEOTTER: You've got discussion? 23 You're than welcome. Page 20 L 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 71708sejour.TXT Mr. Burns? MR. BURNS: I just wanted to add that 21 Mr. Hawkins did point out that the findings should probably have added to it some information about what the lease said, because the lease was for a bar use, and I think that's very appropriate that we should add that. THE COURT: Exactly which page and which line are we modifying? MR. BURNS: on page 2, the lease stated the tenancy was for bar use, and we bring this back in another version for you to sign. But tonight, you could adopt it in concept. CHAIRMAN PEOTTER: I didn't follow where you were at. MR. BURNS: Okay. That was page 2, under the condition 4, about -- CHAIRMAN PEOTTER: You have line numbers to the left. Do you have a line number? MR. BURNS: Line 28, just to add -- COMMISSIONER EATON: Mr. Burns, you're talking about your documents, are you? MR. BURNS: I'm sorry, I am. The documents I prepared, the findings of fact. it's on numbered paper. CHAIRMAN PEOTTER: So you add to the end of that last sentence? MR. BURNS: Yes, that lease state that tenancy Page 21 7 71708sejour.TXT 25 was for bar use. If you'll remember, that is a lease 22 1 introduced during the hearing. 2 CHAIRMAN PEOTTER: Okay. Other changes? 3 MR. BURNS: And then also under condition 13, 4 at the end of my little matrix box -- 5 CHAIRMAN PEOTTER: That Would be page -- 6 MR. BURNS: Page 4, I'm sorry. 7 CHAIRMAN PEOTTER: Page 4, and line -- 8 MR. BURNS: Line 24, 25, very end of that 9 block, after -- where it talks about there was music, 10 bouncer and dancing. And then if we could add to it, 11 "And by the lease which stated that the tenancy was for, 12 quote, bar, restaurant and live entertainment business 13 attached to the January 10, 2008, letter, from 14 Overstreet." 15 CHAIRMAN PEOTTER: Other suggestions? 16 MR. BURNS: I think that's it. 17 CHAIRMAN PEOTTER: Is that acceptable to the 18 maker of the motion of the second? 19 COMMISSIONER HAWKINS: Yes, it Was or is. 20 COMMISSIONER MC DANIEL: Yes. 21 I do have some questions. 22 CHAIRMAN PEOTTER: Yes. 23 MR. MC DANIEL: Thank you. 24 I think I was in the office, and I got a good 25 look at that, but I didn't bring a copy -- is the -- oh, Page 22 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71708sejour.TXT 23 good. Thank you. I guess what I'm looking at is the conditions that are for the type 42 -- is it a type 42 liquor license? is what we're talking about, OR is 47 still in there? CHAIRMAN PEOTTER: we're eliminating the type 47. COMMISSIONER MC DANIEL: Okay. So that would go to a 42 at that point, for beer and wine, Mr. -- CHAIRMAN PEOTTER: Mr. Lepo. COMMISSIONER MC DANIEL: If you remember last time, I was very concerned that the 47 was not there, because that's what got us into trouble. And I had -- I'm the only Commissioner that was on the commission at the time this was originally done. And my recollection of my conversation was I was concerned about that 47, that that might get us into trouble, and that's kind of what the deal was. So I really want to -- I really want to make sure that we address that. I'm happy with the 42, beer and wine. we have no problem with that. It's the hard spirits that get us into trouble. CHAIRMAN PEOTTER: Mr. Lepo, do you have a comment on that? MR. LEPO: I believe we have that as a revised Page 23 J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71708sejour.TXT 24 condition that that -- MR. MC DANIEL: As long as it's in there someplace. I'd like the maker of the motion -- if that's a part of that, I'd like to just -- in terms of the motion, I'd like that in there to make sure that it's not a 47. 42 is fine. CHAIRMAN PEOTTER: Is there -- are there other comments on this, other discussions? COMMISSIONER MC DANIEL: The other comment I have is, one of the three things that was requested this evening was an extension, and I've heard no information tonight why there would be an extension. So I guess I'm not going to be concerned about that. so -- but I've heard nothing about an extension, why we would want one. so I guess that's off the table. CHAIRMAN PEOTTER: with the modification, it's not part of the modification. Rosa? MS. uNS: Mr. chairman, if I may clarify a couple of things? The draft resolution attached to your staff report, specifically condition number 15, 15 basically say that this approval supercedes and rescinds the use permit that carries the title 47. Page 24 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71708sejour.TXT 25 so when we are doing that, then we effectively eliminate the approval of the 47 license. we keep the original approval of the 21 and then the 4Z license, which allow them to do the retail and the wine tasting as ancillary use. so the original findings for the use permit, the original use permit, still carry through with this approval. And that is one of the findings that I identify on page -- THE COURT: And condition 1 also. MR. MC DANIEL: Condition 1, which is here. MS. UNS: Right. And that's one of the "Whereas," the very last "Whereas" in the draft resolution, page 2. It basically says that, "The findings stated for the approval of the original use permit, which is 2001 -005, remain valid and are hereby readopted." CHAIRMAN PEOTTER: Mr. MC Daniel? COMMISSIONER MC DANIEL: But, Ms. Ung, the original request from the overstreets was to have a beer and wine, and I questioned Mr. Overstreet at the time, saying, "Why do you need spirits ?" And that was supposed to be totally ancillary, just in case somebody wanted a very old scotch, if I remember right. so I am comfortable with -- because that's what they originally Page 25 9 V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C 71708sejour.TXT asked for, and I'm comfortable that. You know, we're not going to take away their rights. we're going to give them exactly what they asked for in the first place. The 47 request was just kind of just -in -case kind of thing. so I'm very comfortable at this point that we've given them what they originally asked for, and hopefully that will -- whatever. And if this lease doesn't work out, whatever they end up with, you know, if it comes backs to them, the original, I'm okay with that, because that's what we approved pretty much originally. So that's what we going to approve. And that's the thing that we've gotten in trouble, and we can stay out of it. so it makes some sense to me. That's it, Mr. chairman. CHAIRMAN PEOTTER: Mr. Hawkins? COMMISSIONER HAWKINS: Thank you, Mr. Chairman. I have a question, Mr. Burns, if you may. Because we're talking about two different documents, and I think there was some confusion before. Mr. Burns, you prepared findings and fact to support the resolution; is that right? MR. BURNS: That's correct. COMMISSIONER HAWKINS: So the resolution is that document which carries the amended or modified Page 26 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I 71708sejour.TXT conditions, right? MR. BURNS: Correct. HAWKINS: Okay. I just want to make that clear. And I do have some other further comments when the time is appropriate. CHAIRMAN PEOTTER: Please proceed. COMMISSIONER HAWKINS: I understand Ms. Overstreet's concerns here, and I applaud their efforts. It's unfortunate that after more than six months those efforts just now bore fruit. This is not an easy process. It was clear that the permits were being abused by the tenant. It is also clear to me that the lease which the overstreets proposed to the tenant and the tenant signed authorized or said the tenancy was for a bar, restaurant, live entertainment business. That flew in the face of the permits, and that's why I can't support any further extension at this time. I think we've carried on long enough. It was clear when I asked Mr. Thomas if they were willing to somehow either surrender today or allow the permit to -- permits to lapse today that there was still the thought of operating a restaurant of a similar fashion, and that just can't happen. Page 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J 71708sejour.TXT so that's the reason for my motion. I do it reluctantly. This is not something that the City enjoys doing, but it's something under its police power it is forced to do. Thank you, Mr. Chairman. CHAIRMAN PEOTTER: Any further Commission discussion? we have a motion and a second. MR. THOMAS: Could I be heard further before you vote? CHAIRMAN PEOTTER: No. MR. LEPO: Mr. Chairman, I want to be clear that the resolution taking the action directed clearly incorporates the findings that Mr. Burns has prepared and submitted to you. COMMISSIONER HAWKINS: My motion incorporated both. MR. BURNS: I think there's an issue that the findings are titled "Amending a CUP," whereas the resolution has rescinding one and modifying another. It's meant to support the resolution you had before you. CHAIRMAN PEOTTER: To you need to make a correction to these findings or to the resolution before we vote? MR. LEPO: Could we, again, read back the Page 28 29 17 71708sejour.TXT 1 motion? I want to make sure that it is very clear. I 2 apologize, because we were trying to figure out where we 3 were going. 4 COMMISSIONER HAWKINS: I will be happy to 5 restate the motion. 6 MR. LEPO: Would you do that, sir? 7 CHAIRMAN PEOTTER: Go ahead, Mr. Hawkins. 8 COMMISSIONER HAWKINS: Thank you. I'm sorry, 9 Mr. Chairman. old habits die hard. Please bear with me 10 for the next 12 months. 11 I make a motion to approve staff's 12 recommendation for a resolution of the Planning 13 Commission amending use permit number 2001 -005, and 14 rescinding use permit number 2002 -034, sejour European 15 Bistro & Lounge, on property located at 3400 via Lido, 16 PA2002 -167, together with the findings which support that 17 resolution that have been prepared by the special city 18 attorney, Mr. Allen Burns. 19 That was my motion at that time. 20 MR. BURNS: Mr. chairman, we just have, for the 21 record, out of an abundance of caution, to the extent the 22 findings have any kind of an inconsistent title, the 23 title should be disregarded. The findings support the 24 resolution that's before you. 25 COMMISSIONER HAWKINS: And that would be part 30 1 of my motion. Page 29 0 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71708sejour.TxT CHAIRMAN PEOTTER: Motion has been restated. The second is okay with you? MS. UNG: Mr. Chairman, before you make the motion -- CHAIRMAN PEOTTER: Motion has already been made. MS. UNG: All right. CHAIRMAN PEOTTER: Twice. MS. UNG: Staff just wanted to request for an addition of one condition, which basically addressed the expiration of the approval if not exercised. It's a standard condition that staff did not add in in this form. so basically it say, "This approval shall expire unless exercised within 12 months from the end of the appeal period for a specific in -- as specified in section 20.89 of the Newport Beach municipal Code." CHAIRMAN PEOTTER: Why is it 12 months instead of six? Ms. UNG: Because it's the under the ABO section, rather than the use permit section. CHAIRMAN PEoTTER: okay. So we're going to add condition number 35 saying that, "This shall expire if not exercised within 12 months." 31 1 MS. UNG: Correct. 2 CHAIRMAN PEOTTER: Is that okay With the maker Page 30 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 1 2 3 4 5 6 7 8 9 of the motion? 71708sejour.TXT COMMISSIONER HAWKINS: Maker of the motion accepts. CHAIRMAN PEOTTER: Okay with the second? COMMISSIONER HAWKINS: Amend the conditions as stated by Ms. ung. CHAIRMAN PEOTTER second? Is that okay with the COMMISSIONER MC DANIEL: Yes. CHAIRMAN PEOTTER: Okay. we have a motion and a second. Any further Commission discussion? (No audible response.) CHAIRMAN PEOTTER: Please vote. MS. vARIN: Motion passed with four "ayes" and one abstaining. CHAIRMAN PEOTTER: Thank you very much, Ms. Overstreet and Counsel. we are moving on. And Mr. Burns, thank you. (Proceedings ended.) I, the undersigned, a Certified shorthand Reporter for the State of California, do hereby certify: That prior foregoing proceedings were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were placed under oath; that a verbatim Page 31 717O8sejour.TXT 10 record of the proceedings was made by me using machine 11 shorthand which was thereafter transcribed under my 12 direction; further, that the foregoing is an accurate 13 transcription thereof. 14 I further certify that I am neither financially 15 interested in the action nor a relative or employee of 16 any attorney of any of the parties. 17 IN WITNESS WHEREOF, I have this date subscribed 18 my name. 19 20 Dated: 21 22 Laura A. Millsap, RPR 23 CSR No. 9266 24 25 000000000000000000000000000000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000 Page 32